Sunday, February 13, 2011

Ardeshir Cowasjee Articles: The danger within

TIME and time again one must retreat to the beginnings of the country and the exhortation of its founder and maker, Mohammad Ali Jinnah, that the first and paramount duty of any government is the imposition and maintenance of law and order.

What he did not envisage was the deterioration of the judiciary of his country, which was firm and steadfast during the short time he had.

For without an independent and responsible judiciary law and order is a far cry. And as we all well know, within six years of the country’s birth the judiciary had crumbled, by then largely bereft of its inherited judges. There has been no government since 1954 which could tolerate or survive an independent and honourable judiciary. Such has been our fate.

The law and order situation for too many years has been abysmal, as has been the state of the judiciary. The mighty Pakistan Army when in power has been either unable or unwilling to impose a system where law and order prevails — with the sole exception of a brief period in the early Ayub Khan years when a far smaller army than we now have, less politicised and radical, did manage to bring in a semblance of order and apply the law as it should be applied.

The 1965 war, the East Pakistan disaster, the wild years of Zulfikar Ali Bhutto (the first civilian martial law administrator) during which the constitution was constantly violated, and the nightmare years of Ziaul Haq from which this country has never recovered ensured that law and order would not figure on the lists of priorities, nor would the judiciary be given a chance to recover and reform.

If the army, the most disciplined, orderly in itself, and the richest party in the country could do nothing about law and order, what could be expected from the immature, self-centred and even more corrupt civilian politicians? Corruption is endemic. One of the most telling remarks made by Gen Pervez Musharraf shortly after he took over, when asked by a BBC correspondent whether the army was corrupt, was his response: “We are all of the same stock.” Thus, any expectations for us to be an orderly nation, obedient to the law, must remain at the lowest ebb.

What was known as the ‘restoration’ of democracy in 1988 did not help matters, partially because there was no democracy to be restored and partly because a weak and corrupt government was totally in thrall to a hostile military.

The yo-yo years, with their political musical chairs and an erratic judiciary which normally gave legal cover to military or presidential coups but deviated in the one case of the 1993 dismissal of Nawaz Sharif (to no avail ultimately) helped to worsen the lack of law or order and the two participating political parties, in turn, saw to it that the judiciary became the tool of whoever was currently in power.

A few incidents from those 11 ‘restorative’ years will serve to illustrate the government-judiciary mentality.

Early in 1994, former chief justice of the Sindh High Court, Sajjad Ali Shah who had been elevated to the Supreme Court of Pakistan was sitting on the Lahore Bench. One day he received a message that the prime minister’s house had telephoned asking for a convenient time for prime ministerial husband Asif Ali Zardari to call on him. A time was fixed and Zardari duly turned up, with Aitzaz Ahsan. Sajjad was told that the prime minister was considering appointing him the chief justice of Pakistan. What was his reaction? Sajjad told his visitors that he would not care to leapfrog over three senior judges, but that he would be agreeable to go back to Sindh as its chief justice. This did not fit in with the government plan.

Contacts between Zardari and Sajjad continued and they met thrice at Zardari’s house in Islamabad when the offer of appointment as chief justice was raised again. On one occasion, Zardari, accompanied by Agha Rafiq Ahmad, “finally came out openly with the proposal that the prime minister was prepared to appoint me as the chief justice of Pakistan on the condition that I give my written resignation in advance, which would be used if I failed to oblige her. Obviously the letter was to be undated.” (Law Courts in a Glass House, Chief Justice (Retd) Sajjad Ali Shah, pub. OUP 2001).

There are many other anecdotes in the book which outline the constant contact between the judiciary and the governments in power, neither side at all respecting the concept of independence.

Come Nawaz Sharif as prime minister in 1977, with Sajjad Ali Shah as chief justice of Pakistan. A prickly person, not open to wheeling and dealing, he did not suit Sharif or his designs to assume full and complete power, transforming himself into an amir-ul-momineen and the country into his vision of a citadel of Islam. The tussle reached its peak in November 1997. Gohar Ayub Khan in his book, Glimpses into the Corridors of Power (OUP 2007) relates how on the 5th, when driving with Nawaz Sharif from the Assembly to his house, Sharif naively asked him : “Gohar Sahib, show me a way to arrest the chief justice and keep him in jail for a night.”

Later, on Nov 28, Sharif did the unthinkable. He arranged for a mob of his party storm troopers to physically invade the Supreme Court building at a time when its chief justice was sitting hearing a contempt of court case that had been brought against the prime minister and various others. Pakistan was disgraced in front of the world. Many of the attackers were identified, but, the judiciary being the judiciary, they got off lightly.

The Musharraf years probably put the penultimate nail into the coffin of the judiciary of Pakistan. This last military regime started off with the usual PCO and a reshuffle of the judges of the superior courts, and in due course it was given legal cover by the Supreme Court. Totally averse to law and order, the country, under an army of half a million men, ran amok. Musharraf had other matters on his agenda of priorities and in March 2007 total chaos set in. He has gone, and it is now up to President Asif Zardari to hammer in the final nail.

The judiciary is broken as never before, and in the portion of the country which still remains under some sort of control of both the civilian and the army law and order has fled to an unknown destination.